Union of India & Ors. v. R. Rajashekharan

1. The challenge in this writ petition is to an order dated February 03, 2023 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter, referred to as the ‘Tribunal’) in OA No. 2532/2016, whereby the OA preferred on behalf of the respondent (R. Rajashekharan) was allowed in terms of paragraphs 6 and 7 as under:

2. In brief, the respondent preferred the OA before the Tribunal submitting that pursuant to the acceptance of the recommendations of the 6th Pay Commission, his pay was revised w.e.f. January 01, 2006 in Pay Band 2 carrying the Pay Scale of Rs. 9,300-34,800/- with Grade Pay Rs. 4,600/-. In accordance with Rule 10 of Central Civil Services (Revised Pay) Rules, 2008 (hereinafter, referred to as ‘CCS (Revised Pay) Rules’) and instructions issued, the next increment was to be given on July 01, 2006. Thereafter, vide order dated September 07, 2011, the benefit of ‘stepping up of pay’ was granted to the respondent with retrospective benefit i.e. January 01, 2006 along with six other officials, since the juniors were drawing higher pay than the respondent. However, while giving the benefit of stepping up of pay along with arrears, the increment awarded on July 01, 2006 as per CCS (Revised Pay) Rules was withdrawn and the next increment was directed to be given w.e.f. July 01, 2007, i.e. after a gap of 18 months from the date of grant of revised pay scales.

3. The same was accordingly challenged by the respondent before the Tribunal being in contravention of Rule 10 of CCS (Revised Pay) Rules. The OA preferred by the respondent was allowed by the Tribunal vide impugned order dated February 03, 2023.

4. Aggrieved against the impugned order dated February 03, 2023, passed by the Tribunal, the present writ petition has been preferred on behalf of the petitioner / Union of India, reiterating the stand taken before the Tribunal.

5. It is contended by learned counsel for the petitioners / Union of India that once the respondent had been awarded the benefit of ‘stepping up of pay’, he is not entitled to the increment w.e.f. January 01, 2006. Reference was also made to the advice of the Department of Expenditure, Ministry of Finance to contend that the relevant date of determining the qualifying service would be the date on which the benefit of stepping up of pay has been granted. It is also submitted that the Rules relied upon by the respondent provided that entitlement for increment is only after six months of qualifying service and in this case since the pay of the respondent was re-fixed after stepping up with reference to his junior on January 06, 2006 vide order dated September 27, 2011, the respondent had not completed six months of service from the date of re-fixation of pay and hence not eligible for increment on July 01, 2006 in view of OM No. 2(78)E. III(A)/65 dated February 02, 1966. Reliance is further placed upon judgments passed by this court in Mrs. Nirmal Gupta vs. The LT. Governor/Administrator Govt. of NCT of Delhi & Ors., W.P.(C) 7516/2001, Govt. of NCT of Delhi & Ors. vs. Saroj Khosla and Ors., W.P.(C) 4370/2012 and Govt. of NCT of Delhi & Ors. vs. Krishna Mohan Tiwari, W.P.(C)6153/2012.

6. At the outset, the issue for consideration in the judgments relied by the learned counsel for the petitioner / Union of India may be noticed. In Govt. of NCT of Delhi & Ors. vs. Krishna Mohan Tiwari, W.P.(C) 6153/2012, decided by this court on March 21, 2013, the respondent therein was given an appointment as well as seniority above his batch mate Pramod Kumar. The Tribunal granted relief as claimed by the respondent on principle of retrospective pay fixation on notional basis. A writ petition was preferred on behalf of Govt. of NCT of Delhi contending that back wages, actual or notional, being denied to the respondent therein and having not been expressly granted are deemed to be refused. The High Court dismissed the writ petition upholding the order of the Tribunal but observed that ‘stepping up of pay’ had nothing to do with pay fixation on notional basis though its effect may be akin to notional pay fixation. Further, an illustration was noticed as reflected in paragraph 5 as under:

1966.

7. Similarly, in Mrs. Nirmal Gupta vs. The LT. Governor/Administrator Govt. of NCT of Delhi & Ors., W.P.(C) 7516/2001, decided by this court on July 30, 2013, relied by the petitioner, a select panel for appointment to the post of Post-Graduate Teacher (PGT) was prepared in the year 1984 and some appointments were made without exhausting the panel another advertisement was issued inviting applications from eligible candidates and at that stage the empanelled candidates who had not been offered appointment approached the Tribunal. The empanelled candidates were given appointments pursuant to the cases filed on their behalf in batches by the Tribunal which were upheld by Hon’ble Apex Court. In the interregnum large number of persons were appointed as PGT’s, leading to another round of litigation pertaining to seniority which was decided by granting the seniority as per merit position in the panel. Thereafter, in the further round of litigation, the back wages claimed by the empanelled candidates were denied by the Tribunal noting that only benefit of notional pay fixation was granted. In the aforesaid background, Division Bench observed that principle of ‘stepping up of pay’ was ignored at all stages. It was further held that the principle of ‘stepping up of pay’ has to be applied across the board in all cases where a person who is senior gets less salary than his junior; requiring the salary of the senior to be stepped up and brought at least at par with the junior. The said conclusion was stated to be logical referring to OM No. F.2(78)-EIII(a)/66 and it was further observed in paragraphs 10 and 11 as under:

On the face of record, even in said case the court never considered the issue of date of grant of next increment, but only made reference to sub-para (a) of OM No. F.2(78)-EIII(a)/66 providing for ‘stepping up of pay’.